The State Court of Appeals this month refused to find it excessive for law enforcement to seize a $22,500 car used in two marijuana sales totaling $115, but did say an innocent woman who had $20,000 invested in the car should get some of her money back.

Gladys Vogel loaned Steve Baumgard $20,000 to buy the car, and Baumgard contributed $2,500 by trading in an old vehicle. Vogel wanted Baumgard to have a car so he would have some way to get to work and school, according District II State Court of Appeals decision.

Baumgard used the car when was made two of three marijuana sales, which involved a total of 10.37 grams of marijuana. Criminal charges related to the three sales were dropped when Baumgard entered into a deferred prosecution agreement.

Baumgard had repaid just $550 of the loan before the car was seized by the Walworth County Sheriff's Department.

Appeals Court Judge Mark D. Gundrum, writing for the court's three-member panel, rejected the argument that seizing a $22,500 car over three drug deals worth a total of $175 was "patently disproportionate to the offense.”

Gundrum was joined in his decision by Judges Paul F. Reilly and Lisa S. Neubauer.

"Each of Baumgard’s sales took place in the middle of the day in parking lots where members of the public would likely be present," Gundrum wrote. "And while we certainly recognize that no direct harm to innocent bystanders occurred on these occasions, Baumgard’s repeated participation in the sale of drugs would harm not only the user of the drugs he sold but society more generally. Additionally, his sales of drugs in such public locations and at such times of day would inherently create at least some safety risk to others."

In addition, Gundrum said, the purpose of the state statute allowing law enforcement to seize vehicles used in drug trafficking is to to "deter drug trafficking by permitting confiscation and forfeiture of the means and mobility used."

"In that Baumgard utilized the Toyota for two of the three felony drug sales for which he was charged, forfeiture of the vehicle is entirely consistent with the purpose of the statute, as is forfeiture of Baumgard’s financial interest in the vehicle, in that forfeiture of that interest will make it more difficult for him to purchase another vehicle for any future illegal drug sales," Gunderson wrote.

Seizing Vogel's interest in the car is another matter, the court said.

"The undisputed testimony was that Vogel had no knowledge of Baumgard’s illegal activity and certainly did not consent to it....As a result, forfeiture of her full financial interest, as the circuit court effectively ordered, is necessarily disproportionate and would amount to an unconstitutionally excessive fine," Gundrum said.

Baumgard's direct financial interest in the car -- $3,050 -- is properly forfeited, Gundrum wrote. Any other proceeds resulting from the sale of the car should go to Vogel.

"This holding balances the purpose of the forfeiture statute with the need to apply the law in a constitutional manner based on the individualized culpability of persons with an ownership interest in the subject property," Gundrum wrote.

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﻿﻿Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.

​Margo Kirchner is development director and general counsel of the Wisconsin Justice Initiative.